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EIR Addendum to Previously Certified EIR Proper Where No New Significant Environmental Impacts Identified

Wednesday, October 24th, 2018

An artist’s rendering of the Plaza de Panama, Balboa Park, San Diego, as it would appear at the conclusion of the project. (KCM Group)

In Save Our Heritage Organization v. City of San Diego (2018) 28 Cal.App.5th 656, the Fourth District Court of Appeal held CEQA Guidelines section 15164 (Section 15164) validly establishes an addendum process that is consistent with the CEQA statute. Specifically, Section 15164 filled in gaps in Public Resources Code section 21166 and accurately implemented CEQA.

In 2012, the City of San Diego (City) approved the Plaza de Panama Project in Balboa Park (Project) and its accompanying EIR in order to restore pedestrian and park uses to the area. Save Our Heritage Organisation (SOHO) appealed the City’s actions related to this Project multiple times on many grounds, winning some and losing on others.

In 2016, the City adopted an addendum to the project EIR addressing several project modifications. These included: (1) bridge modifications to meet CalTrans requirements; (2) adding and redesigning storm water basins; (3) adding parking lot ventilation; (4) making energy efficiency upgrades; (5) increasing the elevation of the excavated soils landfill; and (6) refining construction design. The most significant aspect was that the modified project would add 93 more parking spaces than in the original Project and EIR.

The City reviewed the modified Project’s potential environmental impacts to land use, historical resources, aesthetics, transportation, air quality, biological resources, energy, geologic conditions, greenhouse gas (GHG) emissions, health and safety, and hazardous materials. The City concluded that there were: (1) no substantial changes to the project requiring major revisions to the EIR because of new or substantially increased significant environmental effects; (2) no substantial changes in circumstances requiring major revisions to the EIR because of new or substantially increased significant environmental effects; and (3) no new, previously unknown or unknowable, information of substantial importance showing: (a) new or substantially more severe significant efforts than were discussed or shown in the EIR; (b) that previously infeasible mitigation measures/alternatives are now feasible and would substantially reduce significant efforts; or (c) that considerably different mitigation measures than analyzed in the EIR would substantially reduce significant effects. As such, the City approved the modifications with no additional EIR and on the basis of an addendum. SOHO filed suit. The trial court denied the petition. SOHO timely appealed.

Reviewing the agency’s action for abuse of discretion, the Court of Appeal affirmed the trial court’s holding. SOHO’s chief claim was that the addendum process, codified in Section 15164, was an invalid extension of the CEQA statute. Section 15164 provides, in pertinent part, “(a) The lead agency or a responsible agency shall prepare an addendum to a previously certified EIR if some changes or additions are necessary but none of the conditions described in [Guideline] 15162 calling for preparation of a subsequent EIR have occurred. …(c) An addendum need not be circulated for public review but can be included in or attached to the final EIR…. (d) The decision-making body shall consider the addendum with the final EIR… prior to making a decision on the project. (e) A brief explanation of the decision not to prepare a subsequent EIR pursuant to [Guideline] 15162 should be included in an addendum to an EIR, the lead agency’s required findings on the project, or elsewhere in the record.  The explanation must be supported by substantial evidence.”  The Resources Agency’s discussion of Section 15164 states it was “designed to provide clear authority for an addendum as a way of making minor corrections in EIRs… without recirculating the EIR” and that “[Section 15164] provides an interpretation with a label and an explanation of the kind of document that does not need additional public review.”

The Court held that, under established case law, Section 15164, like any agency action, carries a presumption of validity and the challenging party has the burden of demonstrating its invalidity. Presented with the challenge, the Court is to consider “whether…[the regulation] is (1) consistent with and not in conflict with CEQA, and (2) reasonably necessary to effectuate the purpose of CEQA.” This analysis depends on whether the regulation is a quasi-legislative regulation or an interpretive regulation. The Court pointed out that no Supreme Court case has definitively said that the CEQA Guidelines are quasi-legislative or interpretive and declined to say so itself. Instead, the Court held it need not decide the issue in order to resolve the case because SOHO had not met their burden to establish Section 15164 was invalid.

While the Court agreed that CEQA does not expressly authorize the addendum process described in Section 15164, the Court stated that the process “fills a gap” in the CEQA process for projects with a previously certified EIR. Further, “CEQA authorizes the Resources Agency to fill such gaps in the statutory scheme, so long as it does so in a manner consistent with the statute.” The Court held Section 15164 is consistent with and furthers the objectives of CEQA section 21166 by requiring an agency to substantiate its reasons for determining why project revisions do not necessitate further environmental review. “The addendum process reasonably implements section 21166’s objective of balancing the consideration of environmental consequences in public decision making with interests of finality and efficiency.” After EIR certification, “the interests of finality are favored over the policy of encouraging public comment.” As such, the EIR addendum regulation was in line with the spirit of CEQA and a natural extension of the statutory scheme.

To this point, the Court noted that the Section 15164 was first promulgated in 1983 and the Legislature has never modified CEQA to eliminate it, strongly indicating consistency with legislative intent.

Lastly, the Court easily dismissed SOHO’s argument that additional findings were required for the City to approve the addendum. Such findings were already made in adopting the original EIR and “an addendum is only proper where no new significant environmental impacts are discovered.” Here, where no new significant environmental impacts were discovered, an addendum was proper and findings were not necessary.

The Court affirmed the trial court judgement finding the EIR addendum valid.

Key Point:

An addendum to a previously certified EIR is proper where there no new significant environmental impacts are discovered.

Second Appellate District Calls Settlement Agreement Part of “Project” for CEQA Consideration In Line with Historically Broad “Project” Definition

Tuesday, June 12th, 2018

Land erosion is visible under steps to Malibu’s Broad Beach. (Melanie Wynne)

In County of Ventura v. City of Moorpark (2018) 24 Cal.App.5th 377, the Second Appellate District upheld a CEQA statutory exemption applied to a project undertaken by the State-created Broad Beach Geologic Hazard Abatement District (BBGHAD) and clarified that a “project” for CEQA consideration may be two separate activities if they serve a single purpose, have the same proponent, and are “inextricably linked.” Further, settlement agreement restrictions were not preempted by state law and do not constitute extraterritorial regulation. However, the abdication of BBGHAD’s police power in portions of the agreement was improper and therefore void.

The State created BBGHAD to address beach and sand dune erosion at Malibu’s Broad Beach. Here, BBGHAD was obliged to restore and restock sand at the beach. The project would involve shipments of 300,000 cubic yards of sand, four subsequent deposits of equal size at five year intervals, and additional shipments of 75,000 cubic yards on an as-needed basis (Project). The sand was to be collected from quarries 30-40 miles away from Broad Beach and transported by trucks to the beach. The initial deposit alone was estimated to require 44,000 one-way truck trips. Possible truck routes from the quarries to the beach required either traveling through the City of Moorpark (City) or on roads adjacent to the community.

In the Project’s planning stages, City officials expressed concern that hauling sand on these routes would negatively impact residents, and therefore entered into a settlement agreement with BBGHAD to manage traffic. BBGHAD agreed to specific haul routes, truck staging requirements, and changes in routes in response to settlement-defined road emergencies. Additionally, the settlement agreement could only be modified with the consent of all parties. Thereafter, the Coastal Commission approved a coastal development permit for the Project, incorporating the settlement agreement.

The County of Ventura (County) filed suit alleging that the settlement’s incorporation is preempted by state law, constitutes an illegal attempt by the City to regulate traffic outside of the City limits, and represents an abdication of BBGHAD’s state-granted police power.

The trial court found that the Project was statutorily exempt from CEQA, held that the settlement agreement was not preempted by the state’s Vehicle Code, and was not an improper attempt by the City to regulate traffic outside City limits. However, BBGHAD improperly contracted away its ability to amend the settlement agreement, therefore the trial court struck down the agreement’s mutual assent provision and held that BBGHAD must be able to modify the agreement in response to changed circumstances. The County timely appealed.

The Appellate Court affirmed the trial court’s ruling. In addition to its original claims, the County contended that the settlement agreement is an action distinct from the Broad Beach restoration project, thus beyond the scope of the exemption and subject to CEQA review. The Court disagreed, and found that the settlement agreement between the City and BBGHAD was part of the whole beach restoration effort and one project. The Court stated that when two activities are a coordinated endeavor to obtain an objective or are otherwise related to each other, they constitute a single project for purposes of CEQA. Here, the actions served the single purpose of abating a geologic hazard and were inextricably linked in achieving that goal. Only when the second activity is independent of and not a contemplated future part of the first activity may the two activities be reviewed separately.

Turning to the preemption argument, the Court found Vehicle Code section 21 was not implicated in the City’s settlement agreement. Vehicle Code section 21 prohibits local authorities from enacting resolutions or ordinances which affect state traffic restrictions. The Court found that because the agreement did not involve an ordinance or resolution (rather, it was the City acting under its contracting power), it was not preempted by Vehicle Code section 21. The Court further found that the agreement merely dictated the routes BBGHAD’s contractors and subcontractors must use when delivering on behalf of the Project. The agreement did not amount to a physical barrier which would redirect traffic, did not close roads, and did not restrict non-project related hauling.

The Court then addressed the extraterritorial regulation claim and held the City was within its contracting rights to further its implied necessary function of preventing public nuisances on their roads—like thousands of sand shipments. Additionally, the Court found the traffic restrictions on BBGHAD shipments were valid, as they only affected activity within the City limits.

Turning to the issue of infringements on BBGHAD’s police power, the Court found that as an entity of the State, BBGHAD was entitled to exercise a portion of the state’s police power. However, BBGHAD erred in part by contracting away its right to exercise its police power in the future. The agreement bound BBGHAD to surrender its discretion to haul routes in the future unless mutual assent was achieved between BBGHAD and the City. The Court found that this grant of veto power infringed upon the State’s police power therefore was invalid. In examining if this error was sufficient to render the entire agreement void, the Court weighed the agreement’s impact on the public and the expressed intentions of the parties, and determined that the aspects of the agreement which infringed on BBGHAD’s State-granted police power were severable from the rest of the agreement. Accordingly, the Court upheld the agreement in part and struck the agreement in part.

The Court affirmed the trial court’s judgement.

Key Point:

While incorporated settlement agreements with local authorities in project planning is allowable as part of one CEQA-defined “project”, when contracting with state entities, it is important to not infringe upon state police powers through the creation of modification clauses requiring assent from all parties.

General Plan Update Size Limit Not Likely to Cause Urban Decay, Local Commercial Real Estate Agent Letter “Speculative,” Not Substantial Evidence of a Fair Argument

Thursday, January 4th, 2018

Packwood Shopping Center in the Visalia’s neighborhood commercial zone and subject to the 40,000 sq.ft. cap on tenants. (The Registry SF)

In Visalia Retail, LP v. City of Visalia (2018) 20 Cal.App.5th 1, the Fifth District Court of Appeal affirmed a trial court judgment maintaining a general plan amendment and accompanying EIR limiting commercial tenants to 40,000 square feet of space. A letter from a local commercial real estate agent predicting that the size cap would cause grocers to refuse to locate in the neighborhood commercial centers leading to a “downward spiral of physical deterioration” was insufficient to support a fair argument of an environmental impact.

On October 14, 2014, Visalia City Council approved a final EIR for the City’s general plan update establishing a 40,000 square foot cap on tenants in neighborhood commercial zones. Visalia Retail, LP brought suit claiming that the potential for urban decay was not adequately addressed in the EIR. The trial court denied the petition. Visalia Retail timely appealed.

Appellant claimed that the EIR was insufficient for failing to consider the potential for urban decay as large stores would be discouraged from establishing themselves in the neighborhood under the new restriction on square footage. The Court, unconvinced, found that CEQA is focused on significant environmental effects, not purely economic impacts. Relying on Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 677, the Court found CEQA environmental review of potential for urban decay is only appropriate where there is a potential for physical deterioration. Absent such a showing, CEQA is satisfied.

The primary evidence of urban decay submitted by Appellant was a letter prepared by a local commercial real estate agent who claimed the 40,000 square foot cap would discourage grocers from locating in neighborhood commercial centers, “which will cause vacancies, which in turn will result in urban decay.” The real estate agency offered the following support for these claims: (1) the real estate agent was personally unaware of any grocers willing to build new stores under 40,000 square feet; (2) a “typical” large grocer requires at least 50,000 square feet to profit at any one site; (3) a recent line of 10,000 – 20,000 square foot stores was unsuccessful; and (4) three Visalia stores under 40,000 square feet went out of business.

The Court found the letter to be speculative and not rising to the level of substantial evidence on which a fair argument of urban decay could be predicated. First, the limit of the real estate agent’s personal knowledge did not preclude the existence of stores that may be willing to come into the area or have an atypical store size. Further, the fact that other stores were unsuccessful, some a quarter the size of the cap, was not evidence that stores will fail in the City in the future, especially absent discussion or explanation of why they failed. The letter demonstrated speculative causation and failed to show that urban decay would likely result from the cap.

Appellants also claimed the cap made the City’s general plan internally inconsistent by discouraging development in neighborhood commercial sites where the general plan encourages such infill. The Court, presuming the general plan amendment was correct under established precedent, clarified that “just because the general plan prioritizes infill development, avoiding urban sprawl, does not mean all of its policies must encourage all types of infill development. General plans must balance various interests and the fact that one stated goal must yield to another does not mean the general plan is fatally inconsistent.” Essentially, the general plan may give preference to infill that has a 40,000 square foot cap and still be internally consistent.

The Court affirmed the trial court judgement.

Key Point:

Evidence of economic impacts alone is insufficient to support a claim that a project will result in urban decay; urban decay need only be addressed by an EIR where there is potential for physical deterioration.

A single comment letter, unsupported by facts, explanation, or critical analysis, does not raise to the level of “substantial evidence of a fair argument” required by CEQA.

Appellate Court Upholds EIR for Perris Dam Remediation Project in Riverside County

Tuesday, November 18th, 2014

In Paulek v. California Department of Water Resources, 2014 Cal. App. LEXIS 999, the Court of Appeal for the Fourth District upheld the trial court’s denial of a writ of mandate challenging the Department of Water Resources’ (Department) approval of an environmental impact report (EIR) for a dam remediation project at Perris Dam in Riverside County.

Following a 2005 study of the dam’s foundation that found structural deficiencies, the Department developed a three-part plan for long-term improvements. The three parts included: 1) fixing the structural deficiencies in the dam’s foundation; 2) replacing the facility’s outlet tower; and 3) constructing a new emergency outlet extension. Despite an initial notice of preparation of a draft EIR that included all three parts, the final EIR did not include construction of the emergency outlet extension. Petitioner sought a writ vacating the Department’s approval of the EIR.

After establishing the petitioner had standing to bring the lawsuit, the court rejected petitioner’s argument that removal of the emergency outlet extension from the final EIR left a significant environmental impact unmitigated. The California Environmental Quality Act (CEQA) only requires a public agency to mitigate the environmental impacts of “projects that it carries out or approves.” The court found the danger from the current emergency outlet extension existed regardless of whether the seismic improvements were made to the other portions of the dam. As a result, the flooding danger was part of the baseline condition that did not fall within the mitigation requirements of CEQA.

The court also rejected petitioner’s argument that removal of the emergency outlet extension into a separate CEQA analysis constituted improper segmentation. While CEQA prohibits “piecemeal” review of projects to avoid a cumulative significant impact, the court found the emergency outlet was a distinct project. It was not a “reasonably foreseeable consequence” of the dam remediation and tower rebuilding because those two projects could occur and remedy the structural deficiencies without the emergency outlet extension. The outlet extension was also not an integral part of same project and not a future expansion of the dam remediation and tower rebuilding that would change the scope of their impacts. Accordingly, the project was not improperly segmented.

Finally, the court found the Department’s responses to petitioner’s comments on the EIR were adequate. Petitioner’s comments did not point to specific deficiencies in the EIR; rather, the comments generally stated the EIR was inadequate and expressed the need for mitigation. The court held the Department’s reference to portions of the EIR addressing petitioner’s concerns were sufficient stating, “a general comment only requires a general response.”

KEY POINT

The court reiterated the standard for improper segmentation of CEQA projects. Although CEQA defines project broadly in favor a comprehensive environmental review, public agencies have discretion to remove discrete portions of a project from the final EIR, even if the removed portion was included in the initial notice.

Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 196 Cal. App. 4th 515

Tuesday, May 22nd, 2012

In 1994, the City of San Diego (City) certified an EIR and approved a 665-acre mixed-use development plan. In 2008, the City was approached by a developer who wished to build condominiums on the last remaining open space within that area. The City prepared a water supply assessment (WSA) and an addendum to the 1994 EIR. Petitioner filed a petition for writ of mandate arguing that the City failed to comply with the Water Code in adopting the WSA, and that the City should have prepared a supplemental EIR because there was new information and changed circumstances pertaining to water supply and climate change. The trial court found for the City. The Fourth District Court of Appeal affirmed. In addressing the Petitioner’s first point regarding the Water Code, the Court held that the WSA was properly approved by the City. While notices for the CEQA hearings did not reference the WSA, the Court concluded no authority mandates the CEQA notices to specifically reference the WSA. The Court also held that the Petitioner failed to provide new information regarding changes in water supply and climate change. Additionally, the Court explained that the Petitioner delivered its information in a disorderly way by presenting thousands of unorganized documents last minute, essentially “document dumping.” The Court explained that objections must be specific so as to provide the City with a chance to evaluate and respond.

Key Point:

For the purposes of Public Resources Code section 21166, “new” information only includes information that could not have been known and raised when an EIR was certified. Additionally, in presenting evidence to an agency, a Petitioner cannot expect, and CEQA does not require, a lead agency to pore through thousands of documents to find and respond to information that arguably supports Petitioner’s claims.

Final Environmental Impact Reports Must Include Responses to Public Comments, but Need Not Include Economic Feasibility Analyses

Sunday, January 22nd, 2012

The Flanders Foundation v. City of Carmel-by-the-Sea, et al. (January 4, 2012) 202 Cal. App. 4th 603

A citizens group brought suit against the City of Carmel-by-the-Sea challenging the city’s Final EIR prepared in connection with the sale of an historic property known as the Flanders Mansion.  It its action, The Flanders Foundation claimed that the city did not adequately address the Surplus Lands Act, the city was required to include an economic feasibility analysis in the Final EIR and the city failed to respond adequately to a public comment on the Draft EIR.  The court rejected the trial court’s ruling regarding the Surplus Lands Act and the economic feasibility analysis; however, the court agreed with the trial court that the city failed to adequately respond to a Draft EIR comment.

One of the comments submitted on the Flanders Mansion Draft EIR proposed an alternative to the project and suggested that such alternative would mitigate environmental impacts as compared to the project.  The Final EIR failed to provide any response to this comment.  The court reaffirmed a lead agency’s duty to respond to public comments on an EIR and held that where a public comment raises a “significant environmental issue,” the lead agency must at least provide a detailed response explaining why the comment was not accepted.  The Final EIR was faulty for its failure to do so.

The Flanders Foundation also alleged that the Final EIR was inadequate for neglecting to include economic analyses.  On this claim, the court determined that the city was not required to include the feasibility analysis prepared for the project in the Final EIR because such analysis did not discuss or address any environmental issues.  The feasibility analysis was available for public review and was part of the administrative record.  Thus, the court held that substantial evidence in the record supported the infeasibility findings and the city’s statement of overriding considerations.  The Flanders Foundation conceded that there are several cases with this same holding, however, they felt those decisions were incorrect.  This court disagreed with The Flanders Foundation and reaffirmed those previous holdings.

Finally, The Flanders Foundation argued (and the trial court agreed) that the Final EIR was inadequate for failing to analyze the potential environmental impacts of the possible uses a potential purchaser might make of the Flanders Mansion.  Petitioner’s argument was based on the premise that a future owner would not be required to comply with CEQA-mandated mitigation measures in the city’s MMRP and the conservation easement in the recorded CC&R’s.  This court disagreed with the trial court and held that the Surplus Land Act “contains no provision that explicitly prohibits a discarding agency from selling surplus property that is subject to mitigation conditions and conservation easements.”  Those mitigation conditions and conservation easements were created to comply with CEQA and are not negotiable.  The Surplus Land Act clearly provides that it shall not be applied if its provisions conflict with any other provision of statutory law.  Therefore, the court overturned the trial court’s ruling and held that in a sale of surplus land, there is nothing in the Surplus Lands Act that can be interpreted to exclude CEQA-required mitigation conditions and conservation easements to be included in the sale.

Key Points:

Public agencies must respond to comments that raise “significant environmental issues.”  Because an economic feasibility analysis does not address environmental issues it need not be included in the EIR as long as it is included in the administrative record.

Written By: Tina Thomas and Michele Tong

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.